(a) The Guides in this part represent administrative
interpretations of laws enforced by the Federal Trade Commission for the
guidance of the public in conducting its affairs in conformity with legal
requirements. Specifically, the Guides address the application of Section
5 of the FTC Act (15 U.S.C. 45) to the use of endorsements and
testimonials in advertising. The Guides provide the basis for voluntary
compliance with the law by advertisers and endorsers. Practices
inconsistent with these Guides may result in corrective action by the
Commission under Section 5 if, after investigation, the Commission has
reason to believe that the practices fall within the scope of conduct
declared unlawful by the statute.
The Guides set forth the general principles that the
Commission will use in evaluating endorsements and testimonials, together
with examples illustrating the application of those principles. The Guides
do not purport to cover every possible use of endorsements in
advertising.
Whether a particular endorsement or testimonial is deceptive
will depend on the specific factual circumstances of the advertisement at
issue.
(b) For purposes of this part, an endorsement means any
advertising message (including verbal statements, demonstrations, or
depictions of the name, signature, likeness or other identifying personal
characteristics of an individual or the name or seal of an organization)
that consumers are likely to believe reflects the opinions, beliefs,
findings, or experiences of a party other than the sponsoring advertiser,
even if the views expressed by that party are identical to those of the
sponsoring advertiser. The party whose opinions, beliefs, findings, or
experience the message appears to reflect will be called the endorser and
may be an individual, group, or institution.
(c) The Commission intends to treat endorsements and
testimonials identically in the context of its enforcement of the Federal
Trade Commission Act and for purposes of this part. The term endorsements
is therefore generally used hereinafter to cover both terms and
situations.
(d) For purposes of this part, the term product includes any
product, service, company or industry.
(e) For purposes of this part, an expert is an individual,
group, or institution possessing, as a result of experience, study, or
training, knowledge of a particular subject, which knowledge is superior
to what ordinary individuals generally acquire.
Example 1:
A film
critic’s review of a movie is excerpted in an advertisement. When so used,
the review meets the definition of an endorsement because it is viewed by
readers as a statement of the critics own opinions and not those of the
film producer, distributor, or exhibitor. Any alteration in or quotation
from the text of the review that does not fairly reflect its substance
would be a violation of the standards set by this part because it would
distort the endorsers opinion. [See § 255.1(b).]
Example 2:
A TV
commercial depicts two women in a supermarket buying a laundry detergent.
The women are not identified outside the context of the advertisement. One
comments to the other how clean her brand makes her familys clothes, and
the other then comments that she will try it because she has not been
fully satisfied with her own
brand.
This obvious fictional dramatization of a real life situation would not be
an endorsement.
Example 3:
In an
advertisement for a pain remedy, an announcer who is not familiar to
consumers except as a spokesman for the advertising drug company praises
the drugs ability to deliver fast and lasting pain relief. He purports to
speak, not on the basis of his own opinions, but rather in the place of
and on behalf of the drug company.
The announcers statements would not be considered an
endorsement.
Example 4:
A manufacturer of
automobile tires hires a well-known professional automobile racing driver
to deliver its advertising message in television commercials. In these
commercials, the driver speaks of the smooth ride, strength, and long life
of the tires. Even though the message is not expressly declared to be the
personal opinion of the driver, it may nevertheless constitute an
endorsement of the tires. Many consumers will recognize this individual as
being primarily a racing driver and not merely a spokesperson or announcer
for the advertiser. Accordingly, they may well believe the driver would
not speak for an automotive product unless he actually believed in what he
was saying and had personal knowledge sufficient to form that belief.
Hence, they would think that the advertising message reflects the driver’s
personal views. This attribution of the underlying views to the driver
brings the advertisement within the definition of an endorsement for
purposes of this part.
Example 5:
A television
advertisement for a particular brand of golf balls shows a prominent and
well-recognized professional golfer practicing numerous drives off the
tee. This would be an endorsement by the golfer even though she makes no
verbal statement in the advertisement.
Example 6:
An infomercial
for a home fitness system is hosted by a well-known entertainer. During
the infomercial, the entertainer demonstrates the machine and states that
it is the most effective and easy-to-use home exercise machine that she
has ever tried. Even if she is reading from a script, this statement would
be an endorsement, because consumers are likely to believe it reflects the
entertainers views.
Example 7:
A television
advertisement for a housewares store features a well-known female comedian
and a well-known male baseball player engaging in light-hearted banter
about products each one intends to purchase for the other. The comedian
says that she will buy him a Brand X, portable, high-definition television
so he can finally see the strike zone. He says that he will get her a
Brand Y juicer so she can make juice with all the fruit and vegetables
thrown at her during her performances. The comedian and baseball player
are not likely to be deemed endorsers because consumers will likely
realize that the individuals are not expressing their own
views.
Example 8:
A consumer who
regularly purchases a particular brand of dog food decides one day to
purchase a new, more expensive brand made by the same manufacturer. She
writes in her personal blog that the change in diet has made her dogs fur
noticeably softer and shinier, and that in her opinion, the new food
definitely is worth the extra money. This posting would not be deemed an
endorsement under the Guides.
Assume that rather than purchase the dog food with her own
money, the consumer gets it for free because the store routinely tracks
her purchases and its computer has generated a coupon for a free trial bag
of this new brand. Again, her posting would not be deemed an endorsement
under the Guides.
Assume now that the consumer joins a network marketing
program under which she periodically receives various products about which
she can write reviews if she wants to do so. If she receives a free bag of
the new dog food through this program, her positive review would be
considered an endorsement under the Guides.
§ 255.1 General considerations.
(a) Endorsements must reflect the honest opinions, findings,
beliefs, or experience of the endorser. Furthermore, an endorsement may
not convey any express or implied representation that would be deceptive
if made directly by the advertiser. [
See §§ 255.2(a) and (b) regarding substantiation of
representations conveyed by consumer endorsements.
(b) The endorsement message need not be phrased in the exact
words of the endorser, unless the advertisement affirmatively so
represents. However, the endorsement may not be presented out of context
or reworded so as to distort in any way the endorsers opinion or
experience with the product. An advertiser may use an endorsement of an
expert or celebrity only so long as it has good reason to believe that the
endorser continues to subscribe to the views presented. An advertiser may
satisfy this obligation by securing the endorsers views at reasonable
intervals where reasonableness will be determined by such factors as new
information on the performance or effectiveness of the product, a material
alteration in the product, changes in the performance of competitors
products, and the advertisers contract commitments.
(c) When the advertisement represents that the endorser uses
the endorsed product, the endorser must have been a bona fide user of it
at the time the endorsement was given. Additionally, the advertiser may
continue to run the advertisement only so long as it has good reason to
believe that the endorser remains a bona fide user of the product.
[
See § 255.1(b) regarding the “good
reason to believe” requirement.]
(d) Advertisers are subject to liability for false or
unsubstantiated statements made through endorsements, or for failing to
disclose material connections between themselves and their endorsers
[
see § 255.5]. Endorsers also may be
liable for statements made in the course of their
endorsements.
Example 1
: A building
contractor states in an advertisement that he uses the advertisers
exterior house paint because of its remarkable quick drying properties and
durability. This endorsement must comply with the pertinent requirements
of Section 255.3 (Expert Endorsements). Subsequently, the advertiser
reformulates its paint to enable it to cover exterior surfaces with only
one coat. Prior to continued use of the contractors endorsement, the
advertiser must contact the contractor in order to determine whether the
contractor would continue to specify the paint and to subscribe to the
views presented previously.
Example 2:
A television
advertisement portrays a woman seated at a desk on which rest five
unmarked computer keyboards. An announcer says, “ We asked X, an
administrative assistant for over ten years, to try these five unmarked
keyboards and tell us which one she liked best. ” The advertisement
portrays X typing on each keyboard and then picking the advertisers
brand. The announcer asks her why, and X gives her reasons. This
endorsement would probably not represent that X actually uses the
advertisers keyboard at work. In addition, the endorsement also may be
required to meet the standards of Section 255.3
(expert endorsements).
Example 3:
An ad for an
acne treatment features a dermatologist who claims that the product is
“ clinically proven ” to work. Before giving the endorsement, she received a
write-up of the clinical study in question, which indicates flaws in the
design and conduct of the study that are so serious that they preclude any
conclusions about the efficacy of the product. The dermatologist is
subject to liability for the false statements she made in the
advertisement. The advertiser is also liable for misrepresentations made
through the endorsement. [See Section 255.3 regarding the product evaluation that
an expert endorser must conduct.]
Example 4:
A well-known celebrity appears in
an infomercial for an oven roasting bag that purportedly cooks every
chicken perfectly in thirty minutes. During the shooting of the
infomercial, the celebrity watches five attempts to cook chickens using
the bag. In each attempt, the chicken is undercooked after thirty minutes
and requires sixty minutes of cooking time. In the commercial, the
celebrity places an uncooked chicken in the oven roasting bag and places
the bag in one oven. He then takes a chicken roasting bag from a second
oven, removes from the bag what appears to be a perfectly cooked chicken,
tastes the chicken, and says that if you want perfect chicken every time,
in just thirty minutes, this is the product you need. A significant
percentage of consumers are likely to believe the celebritys statements
represent his own views even though he is reading from a script.
The celebrity is subject to liability for his statement about the product.
The advertiser is also liable for misrepresentations made through the
endorsement.
Example 5:
A skin care
products advertiser participates in a blog advertising service. The
service matches up advertisers with bloggers who will promote the
advertiser’s products on their personal blogs. The advertiser requests
that a blogger try a new body lotion and write a review of the product on
her blog. Although the advertiser does not make any specific claims about
the lotions ability to cure skin conditions and the blogger does not ask
the advertiser whether there is substantiation for the claim, in her
review the blogger writes that the lotion cures eczema and recommends the
product to her blog readers who suffer from this condition. The advertiser
is subject to liability for misleading or unsubstantiated
The Commission tested the communication o
1
f advertisements containing
testimonials that clearly and prominently disclosed either “ Results not
typical ” or the stronger “ These testimonials are based on the experiences
of a few people and you are not likely to have similar results. ” Neither
disclosure adequately reduced the communication that the experiences
depicted are generally representative. Based upon this research, the
Commission believes that similar disclaimers regarding the limited
applicability of an endorsers experience to what consumers may generally
expect to achieve are unlikely to be effective.
Nonetheless, the Commission cannot rule
out the possibility that a strong disclaimer of typicality could be
effective in the context of a particular advertisement. Although the
Commission would have the burden of proof in a law enforcement action, the
Commission notes that an advertiser possessing reliable empirical testing
demonstrating that the net impression of its advertisement with such a
disclaimer is non-deceptive will avoid the risk of the initiation of such
an action in the first instance. Representations made through the
bloggers endorsement. The blogger also is subject to liability for
misleading or unsubstantiated representations made in the course of her
endorsement. The blogger is also liable if she fails to disclose clearly
and conspicuously that she is being paid for her services. [
See § 255.5.] In order to limit
its potential liability, the advertiser should ensure that the advertising
service provides guidance and training to its bloggers concerning the need
to ensure that statements they make are truthful and substantiated. The
advertiser should also monitor bloggers who are being paid to promote its
products and take steps necessary to halt the continued publication of
deceptive representations when they are discovered.
§
255.2 Consumer endorsements.
(a) An advertisement employing
endorsements by one or more consumers about the performance of an
advertised product or service will be interpreted as representing that the
product or service is effective for the purpose depicted in the
advertisement. Therefore, the advertiser must possess and rely upon
adequate substantiation, including, when appropriate, competent and
reliable scientific evidence, to support such claims made through
endorsements in the same manner the advertiser would be required to do if it had made
the representation directly,
i.e., without using endorsements. Consumer endorsements
themselves are not competent and reliable scientific evidence.
(b) An advertisement containing an
endorsement relating the experience of one or more consumers on a central
or key attribute of the product or service also will likely be interpreted
as representing that the endorser’s experience is representative of what
consumers will generally achieve with the advertised product or service in actual,
albeit variable, conditions of use.
Therefore, an advertiser should possess
and rely upon adequate substantiation for this representation. If the
advertiser does not have substantiation that the endorsers experience is
representative of what consumers will generally achieve, the advertisement
should clearly and conspicuously disclose the generally expected
performance in the depicted circumstances, and the advertiser must possess and rely on adequate substantiation
for that representation.
1
(c) Advertisements presenting
endorsements by what are represented, directly or by implication, to be
“ actual consumers ” should utilize actual consumers in both the audio and
video, or clearly and conspicuously disclose that the persons in such advertisements are not actual consumers
of the advertised product.
Example 1:
A brochure for a
baldness treatment consists entirely of testimonials from satisfied
customers who say that after using the product, they had amazing hair
growth and their hair is as thick and strong as it was when they were
teenagers. The advertiser must have competent and reliable scientific
evidence that its product is effective in producing new hair growth. The
ad will also likely communicate that the endorsers experiences are
representative of what new users of the product can generally expect.
Therefore, even if the advertiser includes a disclaimer such as, “ Notice:
These testimonials do not prove our product works.
You should not expect to have similar
results, ” the ad is likely to be deceptive unless the advertiser has
adequate substantiation that new users typically will experience results similar
to those experienced by the testimonialists.
Example 2:
An advertisement disseminated by a
company that sells heat pumps presents endorsements from three individuals
who state that after installing the companys heat pump in their homes,
their monthly utility bills went down by $100, $125, and $150,
respectively. The ad will likely be interpreted as conveying that such
savings are representative of what consumers who buy the companys heat
pump can generally expect. The advertiser does
not have substantiation for that representation because, in fact, less
than 20% of purchasers will save $100 or more. A disclosure such as,
“ Results not typical ” or, “ These testimonials are based on the experiences
of a few people and you are not likely to have similar results ” is
insufficient to prevent this ad from being deceptive because consumers
will still interpret the ad as conveying that the specified savings are
representative of what consumers can generally expect. The ad is less
likely to be deceptive if it clearly and conspicuously discloses the
generally expected savings and the advertiser has adequate substantiation
that homeowners can achieve those results. There are multiple ways that such a disclosure could be phrased,
e.g., “the average homeowner saves $35
per month,” “ the typical family saves $50 per month during cold months and
$20 per month in warm months, ” or “most families save 10% on their utility
bills.”
Example 3:
An advertisement for a
cholesterol-lowering product features an individual who claims that his
serum cholesterol went down by 120 points and does not mention having made
any lifestyle changes. A well-conducted clinical study shows that the
product reduces the cholesterol levels of individuals with elevated
cholesterol by an average of 15% and the advertisement clearly and
conspicuously discloses this fact. Despite the presence of this
disclosure, the advertisement would be deceptive if the advertiser does
not have adequate substantiation that the product can produce the specific
results claimed by the endorser (i.e., a 120-point drop in serum
cholesterol without any lifestyle changes).
Example 4:
An advertisement
for a weight-loss product features a formerly obese woman. She says in the
ad, “ Every day, I drank 2 WeightAway shakes, ate only raw vegetables, and
exercised vigorously for six hours at the gym. By the end of six months, I
had gone from 250 pounds to 140 pounds. ” The advertisement accurately
describes the womans experience, and such a result is within the range
that would be generally experienced by an extremely overweight individual
who consumed WeightAway shakes, only ate raw vegetables, and exercised as
the endorser did. Because the endorser clearly describes the limited and
truly exceptional circumstances under which she achieved her results, the
ad is not likely to convey that consumers who weigh substantially less or
use WeightAway under less extreme circumstances will lose 110 pounds in
six months. (If the advertisement simply says that the endorser lost 110
pounds in six months using WeightAway together with diet and exercise,
however, this description would not adequately alert consumers to the
truly remarkable circumstances leading to her weight loss.) The advertiser
must have substantiation, however, for any performance claims conveyed by
the endorsement (e.g., that WeightAway is an effective weight loss
product).
If, in the alternative, the
advertisement simply features “before” and “ after ” pictures of a woman who
says “ I lost 50 pounds in 6 months with WeightAway, ” the ad is likely to
convey that her experience is representative of what consumers will
generally
achieve.
Therefore, if consumers cannot generally expect to achieve such results,
the ad should clearly and conspicuously disclose what they can expect to
lose in the depicted circumstances (
e.g., “ most women who use WeightAway for
six months lose at least 15 pounds ”).
If the ad features the same pictures
but the testimonialist simply says, “ I lost 50 pounds with WeightAway, ”
and WeightAway users generally do not lose 50 pounds, the ad should
disclose what results they do generally achieve
(
e.g., “ most women who use WeightAway lose 15
pounds ”).
Example 5:
An advertisement
presents the results of a poll of consumers who have used the advertisers
cake mixes as well as their own recipes. The results purport to show that
the majority believed that their families could not tell the difference
between the advertised mix and their own cakes baked from scratch. Many of
the consumers are actually pictured in the advertisement along with
relevant, quoted portions of their statements endorsing the product. This
use of the results of a poll or survey of consumers represents that this
is the typical result that ordinary consumers can expect from the
advertisers cake mix.
Example 6:
An advertisement
purports to portray a “ hidden camera ” situation in a crowded cafeteria at
breakfast time. A spokesperson for the advertiser asks a series of actual
patrons of the cafeteria for their spontaneous, honest opinions of the
advertisers recently introduced breakfast cereal. Even though the words
“ hidden camera ” are not displayed on the screen, and even though none of
the actual patrons is specifically identified during the advertisement,
the net impression conveyed to consumers may well be that these are actual
customers, and not actors. If actors have been employed, this fact should
be clearly and conspicuously disclosed.
Example 7
: An advertisement for a recently
released motion picture shows three individuals coming out of a theater,
each of whom gives a positive statement about the movie. These individuals
are actual consumers expressing their personal views about the movie. The
advertiser does not need to have substantiation that their views are
representative of the opinions that most consumers will have about the
movie. Because the consumers statements would be understood to be the
subjective opinions of only three people, this advertisement is not likely
to convey a typicality message. If the motion picture studio had
approached these individuals outside the theater and offered them free
tickets if they would talk about the movie on camera afterwards, that
arrangement should be clearly and conspicuously disclosed.
[See § 255.5.]
§ 255.3 Expert endorsements.
(a) Whenever an advertisement
represents, directly or by implication, that the endorser is an expert
with respect to the endorsement message, then the endorsers
qualifications must in fact give the endorser the expertise that he or she is represented as
possessing with respect to the endorsement.
(b) Although the expert may, in
endorsing a product, take into account factors not within his or her expertise (
e.g., matters of taste or price), the endorsement must be
supported by an actual exercise of that expertise in evaluating product
features or characteristics with respect to which he or she is expert and
which are relevant to an ordinary consumers use of or experience with the
product and are available to the ordinary consumer. This evaluation must
have included an examination or testing of the product at least as
extensive as someone with the same degree of expertise would normally need
to conduct in order to support the conclusions presented in the
endorsement.
To the extent that the advertisement implies that the
endorsement was based upon a comparison, such comparison must have been
included in the experts evaluation; and as a result of such comparison,
the expert must have concluded that, with respect to those features on
which he or she is expert and which are relevant and available to an
ordinary consumer, the endorsed product is at least equal overall to the
competitors products.
Moreover, where the net impression created by the
endorsement is that the advertised product is superior to other products
with respect to any such feature or features, then the expert must in
fact have found such superiority.
[See § 255.1(d) regarding the liability of
endorsers.]
Example 1:
An endorsement of
a particular automobile by one described as an “ engineer ” implies that the
endorsers professional training and experience are such that he is well
acquainted with the design and performance of automobiles. If the
endorsers field is, for example, chemical engineering, the endorsement
would be deceptive.
Example 2:
An endorser of a hearing aid is
simply referred to as “ Doctor ” during the course of an advertisement. The
ad likely implies that the endorser is a medical doctor with substantial
experience in the area of hearing. If the endorser is not a medical doctor
with substantial experience in audiology, the endorsement would likely be
deceptive. A non-medical “ doctor ” (e.g., an individual with a Ph.D. in exercise physiology)
or a physician without substantial experience in the area of hearing can
endorse the product, but if the endorser is referred to as “ doctor, ” the
advertisement must make clear the nature and limits of the endorsers
expertise.
Example 3:
A manufacturer of automobile parts
advertises that its products are approved by the “ American Institute of
Science. ” From its name, consumers would infer that the “ American
Institute of Science ” is a bona fide independent testing organization with
expertise in judging automobile parts and that, as such, it would not
approve any automobile part without first testing its efficacy by means of
valid scientific methods. If the American Institute of Science is not such
a bona fide independent testing organization (e.g., if it was established and
operated by an automotive parts manufacturer), the endorsement would be
deceptive. Even if the American Institute of Science is an independent
bona fide expert testing organization, the endorsement may nevertheless be
deceptive unless the Institute has conducted valid scientific tests of the
advertised products and the test results support the endorsement
message.
Example 4:
A manufacturer of
a non-prescription drug product represents that its product has been
selected over competing products by a large metropolitan hospital. The
hospital has selected the product because the manufacturer, unlike its
competitors, has packaged each dose of the product separately. This
package form is not generally available to the public. Under the
circumstances, the endorsement would be deceptive because the basis for
the hospitals choice – convenience of packaging – is neither relevant nor
available to consumers, and the basis for the hospitals decision is not
disclosed to consumers.
Example 5:
A woman who is
identified as the president of a commercial “ home cleaning service ” states
in a television advertisement that the service uses a particular brand of
cleanser, instead of leading competitors it has tried, because of this
brands performance. Because cleaning services extensively use cleansers
in the course of their business, the ad likely conveys that the president
has knowledge superior to that of ordinary consumers.
Accordingly, the presidents statement
will be deemed to be an expert endorsement. The service must, of course,
actually use the endorsed cleanser. In addition, because the advertisement
implies that the cleaning service has experience with a reasonable number
of leading competitors to the advertised cleanser, the service must, in
fact, have such experience, and, on the basis of its expertise, it must
have determined that the cleaning ability of the endorsed cleanser is at
least equal (or superior, if such is the net impression conveyed by the
advertisement) to that of leading competitors products with which the
service has had experience and which remain reasonably available to it.
Because in this example the cleaning services president makes no mention
that the endorsed cleanser was “ chosen, ” “ selected, ” or otherwise
evaluated in side-by-side comparisons against its competitors, it is
sufficient if the service has relied solely upon its accumulated
experience in evaluating cleansers without having performed
side-by-side or scientific comparisons.
Example 6:
A medical doctor
states in an advertisement for a drug that the product will safely allow
consumers to lower their cholesterol by 50 points. If the materials the
doctor reviewed were merely letters from satisfied consumers or the
results of a rodent study, the endorsement would likely be deceptive
because those materials are not what others with the same degree of
expertise would consider adequate to support this conclusion about the
product’s safety and efficacy.
§ 255.4 Endorsements by organizations.
Endorsements by organizations,
especially expert ones, are viewed as representing the judgment of a group
whose collective experience exceeds that of any individual member, and
whose judgments are generally free of the sort of subjective factors that
vary from individual to individual. Therefore, an organizations
endorsement must be reached by a process sufficient to ensure that the
endorsement fairly reflects the collective judgment of the organization.
Moreover, if an organization is represented as being expert, then, in
conjunction with a proper exercise of its expertise in evaluating the
product under § 255.3 (expert endorsements), it must utilize an expert or
experts recognized as such by the organization or standards previously
adopted by the organization and suitable for judging the relevant merits
of such products.
[
See
§ 255.1(d) regarding the liability of
endorsers.]
Example
: A mattress seller advertises that its product is
endorsed by a chiropractic association. Because the association would be
regarded as expert with respect to judging mattresses, its endorsement
must be supported by an evaluation by an expert or experts recognized as
such by the organization, or by compliance with standards previously
adopted by the organization and aimed at measuring the performance of
mattresses in general and not designed with the unique features of the
advertised mattress in mind.
§ 255.5 Disclosure of material
connections.
When there exists a connection between
the endorser and the seller of the advertised product that might materially affect the weight or credibility of the
endorsement (
i.e., the connection is not reasonably expected by the
audience), such connection must be fully disclosed. For example, when an
endorser who appears in a television commercial is neither represented in
the advertisement as an expert nor is known to a significant portion of
the viewing public, then the advertiser should clearly and conspicuously
disclose either the payment or promise of compensation prior to and in
exchange for the endorsement or the fact that the endorser knew or had
reason to know or to believe that if the endorsement favored the
advertised product some benefit, such as an appearance on television,
would be extended to the endorser. Additional guidance, including guidance
concerning endorsements made through other media, is provided by the
examples below.
Example 1:
A drug company commissions
research on its product by an outside organization. The drug company determines the overall
subject of the research (e.g., to test the efficacy of a newly developed product)
and pays a substantial share of the expenses of the research project, but
the research organization determines the protocol for the study and is
responsible for conducting it. A subsequent advertisement by the drug
company mentions the research results as the “ findings ” of that research
organization. Although the design and conduct of the research project are
controlled by the outside research organization, the weight consumers
place on the reported results could be materially affected by knowing that
the advertiser had funded the project. Therefore, the advertisers payment
of expenses to the research organization should be disclosed in this
advertisement.
Example 2:
A film star
endorses a particular food product. The endorsement regards only points of
taste and individual preference. This endorsement must, of course, comply
with § 255.1; but regardless of whether the star’s compensation for the
commercial is a $1 million cash payment or a royalty for each product sold
by the advertiser during the next year, no disclosure is required because
such payments likely are ordinarily expected by viewers.
Example 3:
During an
appearance by a well-known professional tennis player on a television talk
show, the host comments that the past few months have been the best of her
career and during this time she has risen to her highest level ever in the
rankings. She responds by attributing the improvement in her game to the
fact that she is seeing the ball better than she used to, ever since
having laser vision correction surgery at a clinic that she identifies by
name. She continues talking about the ease of the procedure, the kindness
of the clinics doctors, her speedy recovery, and how she can now engage
in a variety of activities without glasses, including driving at night.
The athlete does not disclose that, even though she does not appear in
commercials for the clinic, she has a contractual relationship with it,
and her contract pays her for speaking publicly about her surgery when she
can do so. Consumers might not realize that a celebrity discussing a
medical procedure in a television interview has been paid for doing so,
and knowledge of such payments would likely affect the weight or
credibility consumers give to the celebritys endorsement. Without a clear
and conspicuous disclosure that the athlete has been engaged as a
spokesperson for the clinic, this endorsement is likely to be deceptive.
Furthermore, if consumers are likely to take away from her story that her
experience was typical of those who undergo the same procedure at the
clinic, the advertiser must have substantiation for that claim. Assume
that instead of speaking about the clinic in a television interview, the
tennis player touts the results of her surgery – mentioning the clinic by
name – on a social networking site that allows her fans to read in real
time what is happening in her life. Given the nature of the medium in
which her endorsement is disseminated, consumers might not realize that
she is a paid endorser. Because that information might affect the weight
consumers give to her endorsement, her relationship with the clinic should
be disclosed.
Assume that during that same television
interview, the tennis player is wearing clothes bearing the insignia of an
athletic wear company with whom she also has an endorsement contract.
Although this contract requires that she wear the companys clothes not
only on the court but also in public appearances, when possible, she does
not mention them or the company during her appearance on the show. No
disclosure is required because no representation is being made about
the clothes in this context.
Example 4:
An ad for an
anti-snoring product features a physician who says that he has seen dozens
of products come on the market over the years and, in his opinion, this is
the best ever. Consumers would expect the physician to be reasonably
compensated for his appearance in the ad. Consumers are unlikely, however,
to expect that the physician receives a percentage of gross product sales
or that he owns part of the company, and either of these facts would
likely materially affect the credibility that consumers attach to the
endorsement. Accordingly, the advertisement should clearly and
conspicuously disclose such a connection between the company and the
physician.
Example 5:
An actual patron
of a restaurant, who is neither known to the public nor presented as an
expert, is shown seated at the counter. He is asked for his “ spontaneous ”
opinion of a new food product served in the restaurant. Assume, first,
that the advertiser had posted a sign on the door of the restaurant
informing all who entered that day that patrons would be interviewed by
the advertiser as part of its TV promotion of its new soy protein “ steak. ”
This notification would materially affect the weight or credibility of the
patron’s endorsement, and, therefore, viewers of the advertisement should
be clearly and conspicuously informed of the circumstances under which the
endorsement was obtained.
Assume, in the alternative, that the
advertiser had not posted a sign on the door of the restaurant, but had
informed all interviewed customers of the “ hidden camera ” only after
interviews were completed and the customers had no reason to know or
believe that their response was being recorded for use in an
advertisement. Even if patrons were also told that they would be paid for allowing the use of their opinions
in advertising, these facts need not be disclosed.
Example 6:
An infomercial
producer wants to include consumer endorsements for an automotive additive
product featured in her commercial, but because the product has not yet
been sold, there are no consumer users. The producers staff reviews the
profiles of individuals interested in working as “ extras ” in commercials
and identifies several who are interested in automobiles. The extras are
asked to use the product for several weeks and then report back to the
producer. They are told that if they are selected to endorse the product
in the producers infomercial, they will receive a small payment. Viewers
would not expect that these “ consumer endorsers ” are actors who were asked
to use the product so that they could appear in the commercial or that
they were compensated. Because the advertisement fails to disclose these
facts, it is deceptive.
Example 7:
A college student
who has earned a reputation as a video game expert maintains a personal
weblog or “ blog ” where he posts entries about his gaming experiences.
Readers of his blog frequently seek his opinions about video game hardware
and software. As it has done in the past, the manufacturer of a newly
released video game system sends the student a free copy of the system and
asks him to write about it on his blog. He tests the new gaming system and
writes a favorable review. Because his review is disseminated via a form
of consumer-generated media in which his relationship to the advertiser is
not inherently obvious, readers are unlikely to know that he has received
the video game system free of charge in exchange for his review of the
product, and given the value of the video game system, this fact likely
would materially affect the credibility they attach to his endorsement.
Accordingly, the blogger should clearly and conspicuously disclose that he
received the gaming system free of charge. The manufacturer should advise
him at the time it provides the gaming system that this connection should
be disclosed, and it should have procedures in place to try to monitor his
postings for compliance.
Example 8:
An online message
board designated for discussions of new music download technology is
frequented by MP3 player enthusiasts. They exchange information about new
products, utilities, and the functionality of numerous playback devices.
Unbeknownst to the message board community, an employee of a leading
playback device manufacturer has been posting messages on the discussion
board promoting the manufacturers product. Knowledge of this posters
employment likely would affect the weight or credibility of her
endorsement. Therefore, the poster should clearly and conspicuously
disclose her relationship to the manufacturer to members and readers of
the message board.
Example 9:
A young man signs
up to be part of a “ street team ” program in which points are awarded each
time a team member talks to his or her friends about a particular
advertisers products. Team members can then exchange their points for
prizes, such as concert tickets or electronics. These incentives would
materially affect the weight or credibility of the team members
endorsements. They should be clearly and conspicuously disclosed, and the
advertiser should take steps to ensure that these disclosures are being
provided.